Lunch Keynote – Putting Survivors First: Innovative Legal Strategies in Human Trafficking Cases
By: Fema Birch
Trafficking in persons occurs in many forms. The two predominant forms of trafficking are for the purposes of labor and sex. As a prosecutor, the goal is to stop instances of trafficking by convicting those responsible for the crime. Because sometimes the prosecutor’s primary goal is obtaining the conviction and the prosecutor does not represent the victims, the victims can be without a voice. These victims are often displaced and are financially unable to go home. In many cases, the victims face potential immigration consequences. In these matters, victims are unable to afford representation and one is not appointed for them.
Martina Vandenberg stated that trafficking cases should not just be centered on the convictions for the criminal but the victim of the crime. In many instances when a victim is not represented by an attorney the restitution judgment is low and may not be enough to help the victim. Only 60% of trafficking victims receive restitution. Generally restitution is considered when the prosecutor asks for it, and in many cases the prosecutor may not ask for restitution especially in cases when the victims are not represented. On average, the restitution for sex trafficking cases is $213,000 and $46,000 for labor trafficking cases, which must be divided amongst the victims. In U.S. v. Shelby Lewis, the four victims were represented by counsel and received a combined total of $3.8 million in restitution. In cases where the victims are not represented the restitution money may go completely to the Treasury, leaving little to nothing for a victim who must start over.
Many trafficking convictions require the victims’ participation. In these many instances the victim is forced to testify and repeat in detail the painful and often traumatizing events that occurred. When victims are put into such a position there is a real fear that testifying will not only jeopardize their lives but also the lives of their families (many of whom are living in other countries, where the traffickers have influence). Because of fear the victims are often reluctant to help; and many programs force victims to help law enforcement. Programs such as the T visa are contingent on whether the victim provides sufficient information to law enforcement. This process can be distressing for victims, and can contribute to the feelings of mistrust that victims may already have for law enforcement.
The solution to many of these problems may already be available. In fact very little new legislation is really required. In many trafficking cases there are red flags that may go up in order to begin investigation and prosecution of the offenders such as financial records, banking data and other information that law enforcement is capable of obtaining without having to exert pressure on the victims. Victims should also be represented and at the very least informed of their rights in obtaining restitution. Furthermore, prosecutors should request restitution for victims when it is available. In many labor cases, civil litigation may provide the only remedy available for victims. Lastly, victims should always come first.
For video of the lunch keynote, please click here.